Gujarat High Court
S H Doshi vs Dena Bank & 2 on 3 August, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/8441/2002 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8441 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to see NO
the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India or any
order made thereunder ?
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S H DOSHI....Petitioner(s)
Versus
DENA BANK & 2....Respondent(s)
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Appearance:
MR DEVESH A BHATT, ADVOCATE for the Petitioner(s) No. 1
MR KM PATEL, ADVOCATE for the Respondent(s) No. 1
MR.VARUN K.PATEL, ADVOCATE for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 03/08/2016
ORAL JUDGMENT
1. By this writapplication under Article 226 of the Constitution of India, the writapplicant - a dismissed Branch Manager of a Nationalized Bank, has prayed for the following reliefs: Page 1 of 13 HC-NIC Page 1 of 13 Created On Sat Aug 06 03:11:50 IST 2016 C/SCA/8441/2002 JUDGMENT 26(a) to issue a writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 8th March, 2002 as well as the order of penalty dated 29th August, 2000 Annexure'F' and be further pleased to direct the respondentauthority to pay all consequential benefits to the petitioner with 18 percent interest thereupon till realization;
(b) Pending admission hearing and final disposal of this Petition, be pleased to stay the operation, implementation and execution of the impugned orders dated 8th March, 2002 and 29th August, 2000 and be further pleased to direct the respondentauthority to calculate the consequential benefits payable to the petitioner and deposit the same before this Hon'ble Court and be further pleased to permit the petitioner to withdraw the same on suitable conditions;
(c) Be pleased to provide the cost of this petition to the petitioner;
(d) pass such other and further order as the Hon'ble Court deems fit and proper.
2. The case of the writapplicant may be summarized as under: 2.1 The writapplicant joined the services of the Dena Bank almost 40 years before the date of filing of this writapplication. When the writ applicant was serving as the Branch Manager in the Race Course Road Branch at Rajkot, he was served with a departmental chargesheet containing the following charges.
1. That while working as Branch Manager, Dena Bank, Race Course Road Branch, Rajkot during the period from 30/08/1996 to 14/12/1999 in violation of rules/ norms and procedures of the Bank you allowed exceedings beyond your discretionary powers in CC Hypothecation A/Cs. Of M/s Royal Marketing and M/s. Shanti Sales Agency. You also did not report the heavy exceedings allowed; and to hide your aforesaid misconducts/ misdeeds you made false reporting in MN Statement as of 30/09/1999. Further, in violation of rules and procedures, you accommodated the Parties (M/s. Royal Marketting, M/s Royal Agency and M/s. Shanti Sales Agency) by withholding the cheques presented in the clearings inspite the fact that sufficient drawing limit was not available in the accounts. Details of the aforesaid gross irregularities/serious lapse committed by you are as under:
(i) That as per delegated discretionary powers for conducting Bank's business as in force from 1st June, 1997 in case of emergent circumstances Manager of Medium Sized Branch may exceed the Sanctioned limit within the available drawable limit to the extent of 10% of the available drawable limit or Rs.20,000/ whichever is lower. However, you allowed execeedings over Page 2 of 13 HC-NIC Page 2 of 13 Created On Sat Aug 06 03:11:50 IST 2016 C/SCA/8441/2002 JUDGMENT sanctioned limit beyond you discretionary powers in CC Hypothecation A/cs of M/s Royal Marketing and M/s. Shanti Sales Agency. Details as to date, sanctioned limit, outstanding and amount of execeedings are given in AnnexureA to this Chargesheet.
(ii) That as per procedure prior approval from the Competent Authority is required to be obtained for allowing any exceedings over the sanctioned limit and any advance granted by the Branch Manager beyond the sanctioned limit/ discretionary power is required to be reported on daily basis in the statement BRROD3. You, however, did not report the exceeding allowed by you as per AnnexureA.
(iii) That you allowed exceedings in the aforesaid CC Hypothecation A/cs but did not report the same in BRROD3. You also did not obtain prior approval from the Competent Authority and to hide your aforesaid acts you manipulated reporting of outstanding figures of the aforementioned A/Cs in MN statement of 30/09/1999 as under: NAME OF THE ACCOUNT OUTSTANDING CORRECT DIFFERENCE MENTIONED IN MN OUTSTANDING AS STATEMENTS AS ON ON 30/09/1999 30/09/1999 (Rs. 000) (Rs. 000) M/S. ROYAL MARKETING 8000 18,09 10,09 M/S SHANTI SALES AGENCY 7000 15,27 8,27 TOTAL 15,00 33,36 18,36 In order to hide the difference of Rs.18.36 Lacs due to the abovementioned wrong reporting in MN Statement you showed wrong outstanding of Rs.18.36 Lacs (Debit) as on 30/09/1999 in another account of M/s. Saurashtra Sarafi Sahkari Mandli Ltd. whereas correct outstanding in this account as on 30/09/99 was Rs.2.17 Lacs (Credit) against limit of Rs.26.92 Lacs. Certified copy of relevant pages of the MN Statement as of 30/09/1999 is enclosed and shown as AnnexureB.
(iv) That as per procedure cheques received in inward clearing are to be debited to the party's account on the same day of receipt of the clearing. In case cheque is required to be returned due to insufficient fund/ limit, the same has to be done on the same day through the return clearing. However, in violation of the aforesaid norms/ rules you withheld various cheques presented in clearing inspite of that the fact the sufficient drawing limit/ balance was not available in the accounts. Details of cheques withheld by you in A/Cs of M/S. Royal Marketing, M/S. Royal Agency and in M/s. Shanti Sales Agency are given in AnnexureC to the chargesheet. As such you had accommodated the parties by giving unauthorised advance.
2. That your aforesaid acts of allowing heavy exceedings beyond your discretionary powers, not reporting the exceedings, making false reporting in MN Statement as of 30/09/1999 and withholding the cheques presented in clearings despite the fact that sufficient drawing limit was not available in the A/Cs shows that you have acted out of ulterior motive. Due to your aforesaid acts both the above A/Cs i.e. M/S. Royal Marketing and M/S. Page 3 of 13 HC-NIC Page 3 of 13 Created On Sat Aug 06 03:11:50 IST 2016 C/SCA/8441/2002 JUDGMENT Shanti Sales Agency are likely to become NPA.
3. Your aforesaid act/s if proved will constitute the following act/s of misconduct.
(i) Lack of integrity/ honesty, devotion in discharging the duties involving or likely to involve the Bank in serious financial risk/ loss and/ or;
(ii) Violation of Bank's norms/ rules and procedures and/or;
(iii) Doing act/s prejudicial to the interest of the Bank involving or likely to involve the Bank in serious financial risk/ loss and/or;
(iv) Act/s unbecoming of a Bank Officer.
4. The above act/s of misconduct, if proved will reflect contravention of Regulation 3(1) read with Regulation 24 of Dena Bank Officer Emloyees (conduct) Regulation punishable under Dena Bank Officer Employees (Discipline & Appeal) Regulations 1976.
2.2 An Inquiry Officer was appointed for the purpose of the departmental inquiry. At the end of the inquiry, the following conclusion was drawn by the Inquiry Officer.
My finding of the inquiry based on above are summarized as under:
1) The CSO has confirmed that he has fully understood the contents of the charges.
2) The CSO has confessed in his written reply that he has committed various mistakes mentioned in the chargesheet.
3) The CSO has confirmed in his written reply and written presentation in the inquiry that various irregularities mentioned in the chargesheet factual position does not different with it.
4) The CSO has admitted all the charges
inquiry before me on 2652000.
5) The CSO was asked again in the inquiry whether he admits all the
charges levelled against in the chargesheet issued to reconfirm his admission and the CSO has reconfirmed his admission of all the charges levelled against him in the chargesheet.
6) Even after admission and readmission of all the charges by the CSO, I have given enough opportunity to CSO and his Defence Representative in case they want to make any other submission before me to defend CSO. However, CSO and his defence representative informed that they do not want to make any other submission to defend CSO.
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7) The Presenting Officer has decided not to proceed further with the
presentation of the case in view of admission of all the charges by the CSO.
In view of above mentioned findings, the charges levelled against the CSO in the chargesheet are admitted and hence, proved.
2.3 The Disciplinary Authority having regard to the inquiry report and other materials, passed the impugned order dated 29/08/2000 dismissing the writapplicant from service.
2.4 Being dissatisfied with the order of dismissal passed by the Disciplinary Authority, the writapplicant preferred an appeal before the Appellate Authority. The General Manager (Mumbai City Region) acted as the Appellate Authority. While dismissing the appeal, the Appellate Authority observed as under:
6. I have carefully gone through each and every contention of the Appellant on his appeal containing 7 pages and his further written submission vide his letter dated 19/04/2001 containing 13 pages, the entire record of the case such as chargesheet, his reply thereon, inquiry proceedings, report and findings of IA, submission of the Appellant on the findings of IA, the penalty order imposed by the IA. My views and comments on the contentions of the Appellant are as under:
6.1 The contentions of the Appellant that he had unblemished service with the Bank is not true. From the record, I observe that a penalty of "stoppage of one increment in present time scale without cumulative effect" was imposed on him vide order dated 22.12.89 in the matter of show cause notice dated 25.2.89 issued to him. Further, the Appellant was imposed with the penalty of "Reduction in Basic Pay by one stage" in matter of another chargesheet dated 21/04/1990.
6.2 As regards the contention raised in para 5.1, 5.2 and 5.3 of the appeal, I observe that during the enquiry proceedings the Appellant was given opportunity to plead his case. However, he preferred to admit all the charges levelled against him. Moreover, the appellant has not given any proof to substantiate that there was a formal understanding with the Management to view the matter leniently.
6.3 With the reference to contention raised in para5.4, 5.5 and 5.6, I observe that during the inquiry proceedings the appellant had admitted all the charges levelled against him. Further, during the said inquiry proceedings, he was time and again asked whether he had anything to submit in his defence. However, he preferred to remain silent. Therefore, I Page 5 of 13 HC-NIC Page 5 of 13 Created On Sat Aug 06 03:11:50 IST 2016 C/SCA/8441/2002 JUDGMENT observe that the Inquiring Authority did not abruptly concluded the enquiry and submitted the enquiry findings as per the provisions of Dena Bank Officer Employees' (Discipline & Appeal) Regulation, 1976.
6.4 With reference to the contention raised in para 5.7 I observe that the Disciplinary Authority vide his letter No.RR/PER/1045/2000 dated 1906 2000 provided copy of Inquiring Authority's finding to appellant for his submission and had again reminded him vide letter no.RR/PER/123/2000 dated 1772000 and the Appellant submitted his submission vide his letter dated 26.7.2000 I observe that the Disciplinary Authority has gone through the findings of the Inquiring Authority and after applying his mind has agreed with his findings.
6.5 With reference to para 5.8 of his appeal I observe that it is summary of the contentions of the appellant and the contentions are already dealt with in detail at above para.
2.5 Being dissatisfied, the present writapplication has been filed.
3. On 30/09/2002, the following order was passed: Mr. Shastri learned counsel for the petitioner submits that having put in 40 years of service the petitioner was made to believe that upon acceptance of the charges levelled against him in the departmental inquiry, the petitioner would be leniently dealt with and in support of the said stand relies on the letter dated 242000 from the office bearer of the Dena Bank Supervisory Staff Association (Annexure C, P.65) and also on the letter dated 2672000 of the petitioner to the disciplinary authority (AnnexureE P.79).
It is submitted that otherwise there was no reason for the petitioner to accept the charges when the petitioner had defences available to him at the inquiry.
In view of the above, Rule returnable on 2nd December, 2002.
4. The appearance of one Mr. Devesh A. Bhatt has been shown as the learned advocate appearing for the writapplicant, however, he is not present even in the second call.
5. It appears from the grounds raised in this writapplication that the writapplicant was lured in making a clean breast of the alleged misconduct on a false assurance that he would be dealt with leniently. To put it in other words, it is the case of the writapplicant that he was made to believe if he would admit the charges, then the bank may show Page 6 of 13 HC-NIC Page 6 of 13 Created On Sat Aug 06 03:11:50 IST 2016 C/SCA/8441/2002 JUDGMENT some mercy upon him and in such circumstances, the writapplicant admitted the alleged acts of misconduct.
7. It appears that in response to the showcause notice issued by the disciplinary authority, the writapplicant had filed his reply dated 26/07/2000 which is at Page79, Annexure'E' to this petition. In the said reply, it has been stated as under: In view of all these facts, I once again strongly oppose the findings in departmental Inquiry and entire Inquiry Proceedings may be initiated fresh, so as to defend myself against all socalled charges leveled against me. I once again repeat that socalled admission of charges levelled against me, because of as mutual understanding arrived by Association. For the sake of Natural Justice reopen Inquiry at that, time I will produce documentary evidence as well as I will like to examine officers who have discussed above matter.
Confession given by me with the fully understanding that Management will taken lenient view only, but Management has taken view that the tool of confession as a base of criminal complaint. This is the totally breach of trust. This is quite contradictory as per understanding made with Association and Management. Thus, my confession given was an interim and it was not final. Under the circumstances, I want to utilize my Constitutional Right on SILENCE and wants to reopen entire Inquiry Proceedings.
8. Thus, it appears from the case of the writapplicant that there should be a denovo inquiry on merits and his confession should be ignored.
9. On the other hand, this writapplicant has been vehemently opposed by Mr. Rishin Patel, the learned counsel appearing for the Bank. According to Mr. Patel, the defence of the writapplicant is nothing but an afterthought. After having admitted all the charges, it is not proper on the part of the writapplicant to turn around and say that his admission or the confession was not on his freewill and volition. Mr. Patel has placed reliance on the following averments made in the affidavitinreply filed on behalf of the Bank.
8. With reference to Para4, respondent categorically denies that any assurance was given by the disciplinary authority for taking lenient view in Page 7 of 13 HC-NIC Page 7 of 13 Created On Sat Aug 06 03:11:50 IST 2016 C/SCA/8441/2002 JUDGMENT the matter. It is also denied that the meeting took place between the regional authority and Shri Parekh, petitioners' defense representative. Letter dated 02/04/2000 appended as Annexure C to the petition is communication between Shri Suresh Parekh, the petitioners' defense representative and the petitioner and Bank has no relation to it. It is submitted that letter written by the petitioners' defense representative to the petitioner is not admissible and it appears to be created with a view to make out the case of plea bargaining. Considering the gravity of the charges the disciplinary authority or regional authority at no point of time had ever given any assurance to the petitioner that if he accepts the charges, a lenient view would be taken. The fact is that the petitioner was not having any defense at all and the aforesaid contention of the petitioner is mere afterthought. To prove the aforesaid contention the petitioner has not produced any documents/ witness before the appellate authority when the petitioner was given personal hearing on 26.02.2002 by the appellate authority.
11. With reference to Para No.7, 8 & 9, respondent denies each and every averments and contentions made therein. It is categorically denied that petitioner was made a scapegoat of some union rift or some unforeseen circumstances not within the knowledge of the petitioner.
12. With reference to Para 10, it is denied that petitioner was given brief personal hearing instead of allowing the petitioner to present his case in detail. It is submitted that from the minutes of the personal hearing given on 26/02/2002 one can observe that the petitioner was given personal hearing in detail. It is also not true that the order passed by the appellate authority is without application of mind. It is submitted that Appellate Authority has passed the order dated 8/03/2002 after carefully considering all the contentions and submissions of the petitioner and after going through entire record of the case. Copy of the minutes signed by the appellate authority, petitioner and his defense representative is enclosed and marked as Annexure R2.
16. With reference to Para No.17 the respondent denies each and every contentions and averments made therein. It is categorically denied that the petitioner's admission to the said charges was under any duress. In fact during the inquiry proceedings the petitioner was time and again asked whether he admits the charges and petitioner in his reply categorically stated that he has received the chargesheet and he has given reply to the concerned authority in which he has confessed his mistakes as stated in the charge sheet. The petitioner's defence representative had also confirmed the admission of all the charges levelled against the petitioner. Thus, the contention of the petitioner that admission to the said charges was under
duress is utterly baseless and outrageous.
10. Having heard the learned counsel appearing for the bank and having considered the materials on record, the only question that falls for my consideration is whether the Bank committed any error in passing Page 8 of 13 HC-NIC Page 8 of 13 Created On Sat Aug 06 03:11:50 IST 2016 C/SCA/8441/2002 JUDGMENT the impugned order of dismissal from service.
11. I am not at all impressed with the defence of the writapplicant that he was made to believe that if he would admit the charges, then the Bank would deal with him leniently. The charges levelled against the writapplicant are otherwise also very serious. He was serving as a Branch Manager of a Nationalized Bank. I take notice of the findings recorded by the Appellate Authority and more particularly, the following: 6.2 As regards to the contention raised in para 5.1, 5.2 and 5.3 of the appeal, I observe that during the enquiry proceedings the Appellant was given opportunity to plead his case. However, he preferred to admit all the charges levelled against him. Moreover, the appellant has not given any proof to substantiate that there was a formal understanding with the Management to view the matter leniently.
6.3 With reference to contention raised in para 5.4, 5.5 and 5.6, I observe that during the inquiry proceedings the appellant had admitted all the charges levelled against him. Further, during the said inquiry proceedings, he was time and again asked whether he had anything to submit in his defence. However, he preferred to remain silent. Therefore, I observe that the Inquiring Authority did not abruptly concluded the enquiry and submitted the enquiry findings as per the provisions of Dena Bank Officer Employees' (Disciplinary & Appeal) Regulation, 1976.
12. In the case of The Central Bank of India Ltd., Vs. Karunamoy Benerjee reported in AIR 1968 SC 266, the Supreme Court observed as under:
19. We must, however, emphasize that the rules of natural justice, as laid down by this Court, will have to be observed, in the conduct of a domestic enquiry against a workman. If the allegations are denied by the workman, it is needless to state that the burden of proving the truth of those allegations will be on the management; and the witnesses called, by the management, must be allowed to be crossexamined, by the workman, and the latter must also be given an opportunity to examine himself and adduce any other evidence that he might choose, in support of his plea. But, if the workman admits his guilt, to insist upon the management to let in evidence about the allegations, will, in our opinion, only be an empty formality. In such a case, it will be open to the management to examine the workman himself, even in the first instance, so as to enable him to offer any explanation for his conduct, or to place before the management any circumstances which will go Page 9 of 13 HC-NIC Page 9 of 13 Created On Sat Aug 06 03:11:50 IST 2016 C/SCA/8441/2002 JUDGMENT to mitigate the gravity of the offence. But, even then, the examination of the workman, under such circumstances, should not savour of an inquisition. If, after the examination of the workman, the management chooses to examine any witnesses, the workman must be given a reasonable opportunity to cross examine those witnesses and also to adduce any other evidence that he may choose.
13. In the case of Chairman & Managing Director, V.S.P. Vs. Goparaju Sri Prabhakara Hari Babu reported in (2008) 5 SCC 569, the Supreme Court observed as under:
16. Indisputably, respondent was a habitual absentee. He in his explanation, in answer to the charge sheet pleaded guilty admitting the charges. In terms of Section 58 of the Indian Evidence Act, charges having been admitted were not required to be proved. It was on that premise that the enquiry proceeding was closed. Before the enquiry officer, he did not submit the explanation that his mother being ill. He, despite opportunities granted to report to duty, did not do it. He failed to explain even his prior conduct.
17. In Sangramsinh P. Gaekwad & Ors. v. Shantadevi P. Gaekwad (Dead) through LRs & Ors. 2005 (11) SCC 314, this Court noticing Section 58 of the Indian Evidence Act, held :
"214. In terms of the aforementioned provision, things admitted need not be proved. In view of the admission of Respondent 1 alone, the issue as regards allotment of 6475 shares should have been answered in favour of the appellants. The company petitioner at a much later stage could not be permitted to take a stand which was contrary to or inconsistent with the original pleadings nor could she be permitted to resile from her admissions contained therein."
18. It was observed that judicial admissions can be made the foundation of the rights of the parties.
19. A subsequent explanation before another authority, which had not been pleaded in the departmental proceedings, cannot by itself a ground to hold that the principles of natural justice had not been complied with in the disciplinary proceedings.
20. The jurisdiction of the High Court in this regard is rather limited. Its power to interfere with disciplinary matters is circumscribed by well known factors. It cannot set aside a well reasoned order only on sympathy or sentiments. [See Maruti Udyod Ltd. v. Ram Lal and Others [(2005) 2 SCC 638]; State of Bihar & Ors. v. Amrendra Kumar Mishra [2006 (9) SCALE 549]; Regional Manager, SBI v. Mahatma Mishra [2006 (11) SCALE 258]; State of Karnataka v. Ameerbi & Ors. [2006 (13) SCALE 319]; State of M.P. and Ors. v. Sanjay Kumar Pathak and Ors. [2007 (12) SCALE 72] and Uttar Haryana Bijli Vitran Nigam Ltd. & Ors. v. Surji Devi [CA No.576 of 2008 decided on 22.1.2008].
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21. Once it is found that all the procedural requirements have been complied with, the Courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The Superior Courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved. {[See Sangeroid Remedies Ltd. v. Union of India & Ors. [(1999) 1 SCC 259]}.
22. The High Court in exercise of its jurisdiction under Article 226 of the Constitution of India also cannot, on the basis of sympathy or sentiment, overturn a legal order.
14. In the overall view of the matter, I am not convinced with the case put up by the writapplicant. A Bank Officer is required to exercise higher standards of the honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the Bank is required to take all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank Officer.
15. In the case of Chairman and Managing Director, United Commercial Bank Vs. P.C. Kakkar (AIR 2003 SC 1571), the Supreme Court in paras 14 and 15 held as under:
14. A Bank Officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the Bank is required to take all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank officer, Good conduct and discipline are inseparable from the functioning of every officer/employee of the Bank. As was observed by this Court in Disciplinary AuthoritycumRegional Manager v. Nikunja Bihari Patnaik, 1996 (9) SCC 69, it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a Bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court.
15. It needs no emphasis that when a Court feels that the punishment is shockingly disproportionate, it must record reasons for coming to such a Page 11 of 13 HC-NIC Page 11 of 13 Created On Sat Aug 06 03:11:50 IST 2016 C/SCA/8441/2002 JUDGMENT conclusion. Mere expression that the punishment is shockingly disproportionate would not meet the requirement of law. Even in respect of administrative orders Lord Denning M.R. in Breen v. Amalgamated Engineering Union (1971 (1) All ER 1148) observed "The giving of reasons is one of the fundamentals of good administration". In Alexander Machinery (Dedley) Ltd. v. Crabtres (1974 LCR 120), it was observed : "Failure to give reasons amounts to denial of justice". Reasons are live links between the mind of the decisiontaker to the controversy in question and the decision or conclusion arrived at". Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasijudicial performance. But as noted above, the proceedings commenced in 1981. The employee was placed under suspension from 1983 to 1988 and has superannuated in 2002.
Acquittal in the criminal case is not determinative of the commission of misconduct or otherwise, and it is open to the authorities to proceed with the disciplinary proceedings, notwithstanding acquittal in criminal case. It per se would not entitle the employee to claim immunity from the proceedings. At the most the factum of acquittal may be a circumstance to be considered while awarding punishment. It would depend upon facts of each case and even that cannot have universal application.
16. In the case of Ganesh Santa Ram sirur Vs. State Bank of India and Another (AIR 2005 SC 314), the Supreme Court observed in paras 32 and 33 as under:
32. The learned senior counsel also relied on para 14 of the above judgment.
Replying on the above passage, Mr. Salve submitted that the appellant, the Branch Manager of a Bank is required to exercise higher standards of honesty and integrity when he deals with the money of the depositors and the customers and, therefore, he is required to take all possible steps to protect the interest of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of the Bank Officer. According to Mr. Salve, good conduct and discipline are inseparable for the functioning of every officer, Manager or employee of the Bank, who deals with public money and there is no defence available to say that there was no loss or profit resulted in the case, when the Manager acted without authority and contrary to the rules and the scheme which is formulated to help the Educated Unemployed Youth. Mr. Salve's above submissions is well merited acceptance and we see much force in the said submission.
33. The Bank Manager/Officer and employees and any Bank nationalised/or Page 12 of 13 HC-NIC Page 12 of 13 Created On Sat Aug 06 03:11:50 IST 2016 C/SCA/8441/2002 JUDGMENT nonnationalised are expected to act and discharge their functions in accordance with the rules and regulations of the Bank. Acting beyond one's authority is by itself a breach of discipline and Trust and a misconduct. In the instant case Charge No.5 framed against the appellant is very serious and grave in nature. We have already extracted the relevant rule which prohibits the Bank Manager to sanction a loan to his wife or his relative or to any partner. While sanctioning the loan the appellant does not appear to have kept this aspect in mind and acted illegally and sanctioned the loan. He realized the mistake later and tried to salvage the same by not encashing the draft issued in the maiden name of his wife though the draft was issued but not encashed. The decision to sanction a loan is not an honest decisions. The Rule 34(3)(1) is a rule of integrity and therefore as rightly pointed out by Mr. Salve, the respondent Bank cannot afford to have the appellant as Bank Manager. The punishment of removal awarded by the Appellate Authority is just and proper in the facts and circumstances of the case. Before concluding, we may usefully rely on the judgment Regional Manager, U.P. SRTC, Etawah and Ors. v. Hoti Lal and Anr. reported in 2003(3) SCC 605. Wherein this Court has held as under : "If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of the learned single Judge upholding the order of dismissal."
17. In view of the above, this writapplication fails and is hereby rejected. Rule is discharged.
The Civil Application, if any, also stands disposed of.
(J.B.PARDIWALA, J.) aruna Page 13 of 13 HC-NIC Page 13 of 13 Created On Sat Aug 06 03:11:50 IST 2016